INDIRA PATHAK Vs. IIND ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) BY means of the present review petition, under Order 47, Rule 1 CPC read with the provisions of Article 226 of the Constitution of India the judgment of Hon'ble Mr. Justice K.C. Agrawal dated 25.11.1981 [Reported in 1988(1) ARC 96] as he then was, is sought to be reviewed.

(2.) THE aforesaid application came up before me on 25.10.1990. The judgment against which the review was being sought, was referred to before a Larger Bench by Hon'ble Mr. Justice S.D. Agrawala. In the aforesaid circumstances, I direct that this review petition may also be listed before the Division Bench for decision. A Division Bench of this Court [Decision of Division Bench, reported in 1994(1) ARC 48 (DB)], has returned the review petition for decision afresh, observing that the law laid down by Hon'ble Mr. Justice K.C. Agrawal in the writ petition does not lay down the correct law. Since the learned counsel for the opposite-party in the petition, namely, Smt. Indira Pathak, who was petitioner in Writ Petition No. 16968 of 1988 submitted that several other questions in alternative are involved for consideration in the present review petition, the Division Bench has remitted back the review petition before me.

(3.) THE facts in short are that one Sri Paramarath Prakash was the proprietor of the premises in dispute. He filed a suit for eviction of Smt. Indira Pathak from the premises in dispute, alleging therein that since the premises was completed 1.4.1973 and the suit has been filed within 10 years of the construction of the building i.e. on 18.9.1981, the provisions of U.P. Act. No. 13 of 1972 were not applicable. The trial Court decreed the suit on 21.7.1984. The defendant Smt. Indira Pathak, aggrieved by the decree of the trial Court, file a revision which was allowed on 18.5.1987. The Revisional Court took the view that since during the pendency of the suit 10 years have lapsed, so the provisions of U.P. Act No. 13 of 1972 making them applicable to the building and the decree passed against the plaintiff was liable to be set aside, as the defendant has complied with the provisions of Section 39 of U.P. Act No. 13 of 1972. Aggrieved by the aforesaid judgment, the plaintiff filed a review application. The plaintiff's review application was allowed on 19.8.1988, holding that the view taken earlier by the Revisional Court suffers from patent error of law, as it is settled by the decision of the Supreme Court that if the suit has been filed within 10 years from the date of the completion of the building, the provisions of U.P. Act No. 13 of 1972 will not be attracted in respect of the said building merely on the ground that the suit remained pending after 10 years of its completion. Aggrieved by the aforesaid judgment of the Revisional Court, reviewing its earlier order, the defendant, Smt. Indira Pathak filed a writ petition in this Court being Writ Petition No. 16968 of 1988. The learned Single Judge of this Court, as he then was, allowed the writ petition [Reported in 1989(1) ARC 98], taking a view that the provisions of U.P. Act No. 13 of 1972 will be applicable even to the cases where a period of 10 years has lapsed during the pendency of the suit or appeal. Aggrieved by the aforesaid judgment [Reported in 1989(1) ARC 98], the present review petition has been filed.